Immaturity. Irresponsibility. Susceptibility to peer pressure. Transitory character. These differences between juveniles and adults demonstrate that juvenile offenders cannot be classified among the worst offenders. Yet, up until the Supreme Court of the United States decided Roper v. Simmons, 543 U.S. 551 (2005), youth was not a bar to the imposition of the death penalty on children.
Eighth Amendment Protection
The Eighth Amendment protects against cruel and unusual punishment, and, after Roper, other juvenile sentencing cases followed. Graham v. Florida, 560 U.S. 48 (2011), held that sentencing juveniles to life without parole for non-homicide offenses violated the Eighth Amendment. The following year, Miller v. Alabama, 567 U.S. 460 (2012), extended it to homicide offenses in cases where the crime resulted from youthful factors.
“These cases show a progression in recognizing juveniles are different,” said Justin Karpf, assistant public defender for Florida’s Second Judicial Circuit, Appellate Division. “When you read these cases, they focus on brain science. That’s generally a good thing when courts are following along with conventional scientific wisdom.”
This body of law is only about 10 years old and, Karpf says, shows hope. “And that’s a really exciting proposition: somebody who, decades ago thought, ‘this is it,’ now has an opportunity to show that they’ve changed, matured, and rehabilitated. They’re not the same person they were.”
Because these cases are substantive in nature, the Supreme Court held they applied retroactively. Montgomery v. Louisiana, 577 U.S. 190 (2016). Now that the courts must consider the factors of youth, and ensure some meaningful opportunity for release, what’s next?
Considering the Factors of Youth
Juveniles who once faced the death penalty, or mandatory life without parole, now have an opportunity to request a resentencing hearing. Courts now consider the factors of youth before imposing a life sentence.
“When we ask for a sentence less than life, we are not asking for mercy. We are not asking for a favor. We are asking for an appropriate sentence—one that is proportional in light of the offender’s culpability,” said Roseanne Eckert, coordinating attorney for the Florida Direct File and Youthful Offender Project at Florida International University College of Law.
Karpf agreed. “Courts are considering the effects of youth—things like peer pressure and the possibility of rehabilitation—and even if a sentence is the same, there is more deliberation going into it,” he said.
“There is no state interest in incarcerating anyone longer than they should be—longer than their relative culpability,” Eckert said. “What legitimate state interest is there to do so? Now, we’re giving judges an opportunity to determine an appropriate sentence where they didn’t have the discretion to fashion one before.”
Courts now consider youthful factors, including a juvenile’s home life, socioeconomic status, mental health, immaturity, irresponsibility, susceptibility to peer pressure, and transitory character.
“The whole spirit behind Miller and Graham is to take into account the fact that the offender was a minor and all the attendant circumstances,” said Brenda Czekanski, public defender for Florida’s Ninth Judicial Circuit.
Czekanski worked as support staff at the Miami, Florida, public defender’s office on a resentencing case due to Roper and Miller. “The judge agreed with the defense and illustrated why it was so important to consider the factors of youth. She did not know any of the person’s horrific childhood story and, at the time of his original sentencing, it could not be taken into consideration,” Czekanski said.
“For a child to do something horrendous, we have to look at what’s going on because they don’t have control over their lives the way adults do,” she said. This is why the Supreme Court extended the consideration of youthful factors to juvenile homicide cases. In many states, courts did not have any discretion in first-degree murder cases.
What Makes an Opportunity for Release Meaningful?
Now that juveniles can have a second chance, what does that look like? The next big question is: Do the parole systems offer a meaningful opportunity for release?
Under Graham, a state is not required to guarantee the eventual freedom of a juvenile offender convicted of a non-homicide crime. A state, however, must provide juvenile offenders with some meaningful opportunity for release based on demonstrated maturity and rehabilitation.
“One of the big issues for today, and for the next several years, is a reassessment of our parole systems around the country and making sure they are constitutional and providing a meaningful opportunity for release under the Eighth Amendment,” said Paolo Annino, director of the Public Interest Law Center and director of the Children’s Advocacy Clinic at Florida State University College of Law. “There are horror stories about kids who should get parole but never get it. This is a leading issue in juvenile justice.”
Florida, which abolished parole in 1994, adopted a scheme that includes a judicial review after 15, 20, or 25 years, depending on the circumstances of the offense. This could answer the need for a meaningful opportunity for release. But, it still must account for those who were given parole and are now no longer eligible.
Although a few other states use judicial review, most primarily use parole as the mechanism for an opportunity for meaningful release. Whether these systems satisfy the meaningfulness requirement is being tested in courts nationwide.
Advocates Apply These SCOTUS Opinions to Current Cases
Roper and its progeny are guiding courts and attorneys in current direct file cases, where charges are filed against a minor directly in adult criminal court. This bypasses specific programs, funding, and rehabilitative options that exist only in the juvenile system.
“It is a fundamental principle based on the Eighth Amendment and the Constitution, that every person in our community should be treated with dignity,” Annino said, explaining that placing children in adult prisons violates that right. “[It] is not treating them like children, it is treating them like something else—adults. Psychologically and neurologically, they’re still developing.”
He added that the emphasis needs to be working within the juvenile justice system. “We know a lot now,” Annino said. “Criminology has given us the science. We know small programs work. Community programs work. Interventions and trauma therapy work.”
Jessica Yeary, elected public defender of Florida’s Second Judicial Circuit, purposefully chose a caseload that deals with direct filed children. She represents all the children appointed to her office, who are charged in the adult system.
“These kids are looking at spending the rest of their life in prison and having their fate sealed and decided as freshmen in high school,” she said. “Just by the charge, and the decision to direct file, the State has written their fate.”
Yeary said the purpose of the juvenile system is rehabilitation, support, and diversion. By contrast, the adult system is punitive. A direct file charge, she said, tells the children they are beyond redemption and deserve the harshest punishment.
Yeary mentioned that she sometimes represents children whose parent she represented a few years before. Where the child was once protected as a victim because the trauma was understood, the child is no longer protected when they come into court as a defendant.
“We all know through scientific studies and research that kids who go through adverse childhood experiences will act out in ways we can predict,” Yeary said. “Instead of supporting them through that, they’re locked up. That’s something we as a society must do better and correct.”
She added that society knows when our kids make mistakes, they are not fully developed, fully mature, and fully capable of understanding the consequences of their decisions. “In any other world, we’d teach them a lesson and welcome them back to the family. There comes the point in the system where we forget that. Time out is a prison cell, and we don’t ever let them back out.”
She noted that most of her plea offers are for more years than the kids have even been alive.
How You Can Help
Opportunities to help shape this relatively new body of law are plenty. Young lawyers can:
- draft amicus briefs when new cases concerning juvenile resentencing arise,
- join their local county’s list for conflict attorneys and take a case pro bono,
- meet with their legislature and educate them regarding this area of reform,
- mentor youth in their community, or
- join organizations like the guardian ad litem program or the Boys and Girls Club.
Czekanski also recommended contacting a local law school’s children’s advocacy clinic, as they often need the help of volunteer attorneys. You can find a list of children’s legal clinics on the ABA Section of Litigation Children’s Rights Litigation Committee webpage.
“We need a culture change,” Annino said. “We need a change not only in law but also in our general communities, that we really do believe kids are different.”
Juvenile justice cases involve a youth who is being charged with what would be considered a crime if they were an adult. Jurisdictions vary in how they provide representation to youth, with some utilizing a public defender model while others contract outside lawyers to provide representation. Get a peek into the day-to-day work of a juvenile justice attorney by watching the ABA Career Center Career Choice webinar on juvenile justice. The speakers discuss career paths and provide invaluable insight on how to break into this area, what drew them to it, the pros and cons, and what a typical day for a juvenile defense attorney entails.